RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-03674
		COUNSEL:  NONE
		HEARING DESIRED:  NO

________________________________________________________________

THE APPLICANT REQUESTS THAT:

1.  His Bad Conduct Discharge (BCD) be upgraded to honorable.  

2.  His record be corrected to reflect that the sexual assault 
charge was not with a child under the age of 16.

3.  The charge of assault be dropped or changed to a lesser 
offense.

________________________________________________________________

THE APPLICANT CONTENDS THAT:

He was not guilty of carnal knowledge but the statement of 
charge implies that he had knowledge of her true age.  She told 
him that she was 16 years old at the time that he met her which 
was not true. 

According to United States V. Davis, 15 MJ567 (ACMR 1983) where 
there is consent, there can be no unlawful force or violence; 
therefore, there can be no criminal act of assault and battery.  
Regardless of the wavering testimony given there was no other 
act but the acts that were confined to the sexual intercourse 
were consensual.  

His defense lawyer read him the charges and told him that he was 
looking at a maximum sentence of 20 years.  He thought that the 
only thing he would have to fight was the testimony against him; 
however, he did not know that he would also have to contend with 
the fact that he was African American and she was Caucasian.  

He never threatened or laid hands on her with the intent to harm 
her during or after they had consensual intercourse.  

She made many different testimonies and at one point stated that 
she did not know what happened or could not remember.  The court 
knew about her previous lifestyle and mental issues prior to him 
meeting her that night and despite her wavering testimony 
decided to convict him anyway. 

She received a rape kit the morning after the alleged rape and 
there were no signs of force.  His only regret is that he had 
intercourse with someone he did not know well; was not married 
to and did not take her home soon enough. 

Race did play a big part in his conviction.  Both he and his 
defense lawyer were male African Americans against two 
Caucasians. 

Restoring his good name is all that he is asking.  He has lived 
his life as an upstanding citizen since this incident.  He 
worked at the Armed Forces Bank as a teller for one year, sold 
real estate, served faithfully in his church and worked for a 
transit company for 15 years.  He has been married for 11 years 
and has four children.

In support of his appeal, the applicant provides a personal 
statement, certificates of recognition, character reference 
letters, civilian performance record and various other documents 
associated with his request.

The applicant’s complete submission, with attachments, is at 
Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

On 6 Apr 93, the applicant enlisted in the Regular Air Force.  

In Aug 96, the applicant was tried by general court-martial and 
was found not guilty of carnal knowledge, but guilty of assault.  
The applicant was sentenced to a BCD, confinement for 1 year, 
forfeiture of all pay and allowances, and reduction to the grade 
of airman basic.  Subsequently, the Court of Appeals for the 
Armed Forces (CAAF) directed that any forfeitures collected 
prior to the convening authority taking action, and any pay and 
allowances withheld because of a premature reduction in grade, 
be restored.  On 20 Aug 98, the convening authority approved the 
adjudged sentence consistent with the CAAF’s decision.

On 27 Aug 98, the applicant was discharged, with a reason for 
separation of conviction by court-martial (other than 
desertion), and a bad conduct character of service.  He was 
credited with 4 years, 8 months and 18 days of active duty 
service.  

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THE AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial, stating, in part, that after 
considering the evidence, the general court-martial found the 
applicant guilty of assault meaning that it found the touching 
was not consensual.  There is nothing at this point that would 
warrant overturning the court’s findings.  Moreover, there is 
nothing to support the argument that race played a factor in 
this case. 

The complete JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 6 Dec 13 for review and comment within 30 days.  As 
of this date, no response has been received by this office 
(Exhibit D).

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice.  We note that 
this Board is without authority to reverse, set aside, or 
otherwise expunge a court-martial conviction.  Rather, in 
accordance with Title 10, United States Code, Section 1552(f), 
actions by this Board are limited to corrections to the record 
to reflect actions taken by the reviewing officials and action 
on the sentence of the court-martial for the purpose of 
clemency.  We find no evidence that indicates the applicant’s 
service characterization, which had its basis in his conviction 
by general court-martial and was a part of the sentence of the 
military court, was improper or that it exceeded the limitations 
set forth in the Uniform Code of Military Justice (UCMJ).  We 
have considered the applicant's overall quality of service, the 
general court-martial conviction which precipitated the 
discharge, and the seriousness of the offense to which 
convicted.  However, we do not find the evidence presented is 
sufficient for us to conclude that the applicant’s post-service 
activities overcome the misconduct for which he was discharged.  
Therefore, based on the available evidence of record, we find no 
basis upon which to favorably consider this application.

________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and the 
application will only be reconsidered upon the submission of 
newly discovered relevant evidence not considered with this 
application.

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2013-03674 in Executive Session on 7 Aug 2014, under 
the provisions of AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 Jan 13, w/atchs. 
    Exhibit B.  Pertinent Excerpts from Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 26 Nov 13.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Dec 13.